216 Jamaica Avenue v. S & R Playhouse Realty Co.

Filing 41

Reply in support of 35 Motion for leave to File Supplemental Brief in Support of its Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment filed by 216 Jamaica Avenue. (Attachments: # 1 Exhibit A (Notice of deposition -- S&R 30(b)(6))# 2 Exhibit B (Collateral Mortgage Modification Agreement (Dec. 19, 2001))# 3 Exhibit C (Collateral Assignment of Leases and Rents (Feb. 15, 1995))# 4 Exhibit D (Confidential Memorandum No. 48 (Sept. 17, 1984)))(Cooper, Charles)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION __________________________________________ 216 JAMAICA AVENUE, LLC, Plaintiff, v. S & R PLAYHOUSE REALTY CO., ) ) Defendant. ) ) __________________________________________) PLAINTIFF'S NOTICE OF DEPOSITION OF DEFENDANT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 30(b)(6) PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 30(b)(6), plaintiff, 216 Jamaica Avenue LLC, will depose upon oral examination a person or persons designated by defendant, S&R Playhouse Realty ("S&R"), who are most knowledgeable about the matters described below. ) ) ) ) ) ) ) ) ) Civil Action No. 06-1288

(Judge Boyko) )

The deposition will take place before a person authorized to administer oaths at the offices of Frantz Ward, 2500 Key Center, 127 Public Square, Cleveland, Ohio, on Monday, December 18, 2006. The deposition will commence at 9:30 a.m. and will continue until completed in accordance with the Federal Rules of Civil Procedure. S&R must designate for this deposition the officers, directors, managing agents, or other persons who consent to testify on its behalf and who are most knowledgeable about the following matters: 1. The lease originally between the Realty Investment Co. and Salmon P. Halle et al., dated March 15, 1912, and the modification of said lease, dated October 17, 1912 ("Lease"), including but not being limited to (1) S&R's acquisition of the leasehold and (2) the meaning, exercise, or performance of S&R's and the lessor's rights and obligations thereunder from the date on which S&R acquired the leasehold to the present. 2. The assignment and assumption of the Lease between the Halle Brothers Company and S&R, dated May 21, 1982 ("1982 Assignment and Assumption"), including but not being limited to (1) the negotiation and execution of the 1982 Assignment and Assumption and (2) the meaning, exercise, or performance of S&R's and the assignor's rights and obligations thereunder from May 21, 1982, to the present. 3. The after-tax profitability and net cash flow of the building situated at 1228 Euclid Avenue, Cleveland, Ohio, commonly known as the "Halle

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Building," from the date of the 1982 Assignment and Assumption to the present. 4. Representations made to current, former, and potential investors in S&R, current, former, and potential lenders to S&R, and current, former, and potential limited and general partners of S&R relating to the Lease, the 1982 Assignment and Assumption, or the Halle Building. The terms "potential investors," "potential lenders," and "potential limited and general partners" mean persons or entities who communicated with S&R about the possibility of investing, lending, or becoming a partner but who ultimately did not invest, lend, or become a partner for whatever reason. 5. Communications between S&R and former and potential owners of the leased property, including but not being limited to Halle Cleveland LLC, relating to the Lease, the 1982 Assignment and Assumption, or the Halle Building. The term "potential owners" means persons or entities who communicated with S&R about the Halle Building, the leasehold, or S&R's or the lessor's rights and obligations under the Lease or the 1982 Assignment and Assumption in contemplation of acquiring the leased property but who ultimately did not acquire the leased property for whatever reason. 6. Estoppel certificates provided by former owners of the leased property to S&R's present, former, and potential lenders relating to the Lease,

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the 1982 Assignment and Assumption, or the Halle Building, including but not being limited to the meaning and preparation of the certificates.

December 13, 2006

Respectfully Submitted, _____________________________

James B. Niehaus (0020128) [e-mail] Christopher G. Keim (0067117) [e-mail] FRANTZ WARD LLP 2500 Key Center 127 Public Square Cleveland, Ohio 44114-1230 216-515-1660 216-515-1650 (fax)

David Lehn [e-mail] Charles J. Cooper [e-mail] David H. Thompson [e-mail] COOPER & KIRK, PLLC 555 Eleventh Street NW Suite 750 Washington, DC 20004 [phone] [phone] (fax) Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify on December 13, 2006, a copy of the foregoing was served by regular U.S. mail upon the Defendant:

S&R Playhouse Realty Co. c/o Stephen D. Williger Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114

_____________________________ Kelly Cassetori Project Assistant COOPER & KIRK, PLLC 555 Eleventh Street NW Suite 750 Washington, DC 20004 [phone] [phone] (fax) [e-mail]

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